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LPC Law Notes Employment Law Notes

Unfair Dismissal I Tutorial Notes

Updated Unfair Dismissal I Tutorial Notes

Employment Law Notes

Employment Law

Approximately 388 pages

A collection of the best LPC Employment notes the director of Oxbridge Notes (a former Oxford law graduate) could find in 2014 after combing through seventeen LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Employment Law notes available in the UK this year. This collection of notes is full...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

INTRODUCTION

  • Can bring an action even if the contract was terminated in accordance with its terms and conditions

  • Employee will argue that the dismissal, or the procedure in the run up to the dismissal, was unfair

  • Outcomes:
ELIGIBILITY

  • WD claim cannot be made if the termination was carried out in accordance with termination conditions… however the employee may still have a claim in UD

  • UD is a statutory claim set out in the Employment Rights Act 1996

  • Not all employees eligible; 4 tests:

EMPLOYEE

  • Contract OF SERVICE and not contract FOR SERVICES

  • Not always straightforward to distinguish… difficult to find a single test

  • Three basic requirements:

  • 1 means can’t delegate the work to someone else

  • 2 means the employer must be under an obligation to offer the employee work and the employee must be under an offer to accept it

  • 3 means, for example, hours of work, place of work and duties to be performed

    • If any one of these factors is missing, the worker won’t be classed as an employee

DISMISSAL

REQUISITE PERIOD OF EMPLOYMENT PRIOR TO DISMISSAL

  • Month means a calendar month and year means 12 calendar months

  • 20 April 2011 and worked continuously from that date, the first years’ employment would be complete on 19 April 2012;

BEEN INCREASED TO 2 YEARS

MUST NOT BE IN EXCLUDED CLASS
ACTIVITY 1 – THE DEFINITION OF DISMISSAL
THE UNFAIR DISMISSAL CLAIM

  • At common law an employer, as long as he abides by the termination provision in the contract, can dismiss employees as he sees fit with no remedy arising for the employee… however in order to protect the employees from this dismissal at whim, the statutory claim of unfair dismissal has introduced the concept of ‘fairness’

4 stages of an unfair dismissal claim:

  1. Is the employee eligible to claim? Employee has to prove eligibility

  1. Has the employee been dismissed? Employee has to prove dismissal

  1. Was the dismissal for a potentially fair reason? Employer to prove the reason for dismissal

  1. Did the employer act reasonably in dismissing the employee? Tribunal to decide

This summarises the progress of an unfair dismissal claim; note however that exceptional cases, such as trade union and maternity cases, will vary this structure
THE FIVE PERMITTED REASONS

  • If employer is unable to show that the dismissal was for one of the five permitted reasons in s98(2), the dismissal will be unfair

  • The reason for the dismissal must relate to:

  • It is possible for the employer to have more than one reason; the employer need only show that the main reason comes within 98

Employee’s capability or qualifications to do the work?

  • Employer will argue that the employee isn’t capable of doing the job because he lacks capability or is too ill

  • If the employer argues that the employee lacks qualifications, the employer must show that such a qualification is essential to do the job

Conduct

  • Covers such things as disobedience to orders, dishonesty, breach of the duty of fidelity, poor timekeeping etc.

  • Misconduct outside employment will also come under this reason as long as it is connected to the employment; e.g. no implications if a cashier was found guilty of a motoring offence, but theft would apply

Redundancy

  • A ground for unfair dismissal but a redundant employee may also have a claim for a redundancy payment

Illegality

  • Avoiding the contravention of a statutory provision, e.g. it may become necessary to dismiss a delivery driver if he has been disqualified from driving

Other

  • Catch all provision

  • Employer must prove the reason for dismissal and that it is a substantial reason and not just trivial

  • This has been used in connection with business reorganisations or where there has been a clash of personalities between two employees
ACTIVITY 2 – IDENTIFYING PERMITTED REASONS
AUTOMATICALLY UNFAIR DISMISSALS

  • Special cases where the normal rules are varied

  • In these cases the dismissal is automatically unfair

  • So after the tribunal has judged that the real reason for dismissal falls within an unfair category, it will make a finding of unfair dismissal and does not need to consider the reasonableness

  • The special cases are as follows

  1. Dismissals for trade union reasons and following industrial action

  1. Dismissals for asserting statutory rights

  1. Health and safety dismissals

  1. Dismissals on the transfer of a business

  1. Pregnancy or maternity related dismissals
THE FAIRNESS OF THE DISMISSAL

  • After the employee has stated the reason for the dismissal, and proved that it is one of the permitted reasons, the tribunal will decide whether or not the dismissal is fair

  • Question of fact; the tribunal must take into account s98(4):

  • Tells tribunal to take into account size and administrative resources of the employer; in other words larger companies will have to do more; they should have detailed policies in place and will be expected to comply with them;

  • If employers are incapable of doing their job, larger employers will be expected to consider offering an alternative employment before dismissal

  • Also must consider whether the reason was sufficiently serious reason for dismissing the employee; or whether another sanction would have been...

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